1st of a series
CAGAYAN DE ORO CITY (MindaNews / 08 August) — In an earlier article published by MindaNews, I endorsed the passage of the Bangsamoro Basic Law (BBL). In my view, the 2017 version is much improved draft over the 2014 one which was mangled by Congress and ultimately did not pass. There are still however significant issues that must be addressed to ensure a constitutional and effective Bangsamoro. This is probably why the new bill has not been filed yet.
Ideally, the BBL should be proposed by no less than the Speaker of the House of Representatives and the Senate President as it was in the Aquino years. It should, at the right time, be certified as urgent by the President.
In this article, I will highlight the good provisions of the 2017 draft of the BBL. This will be followed next week with my analysis of the flaws and gaps that I see in the current version.
Many provisions incorporated in the 2017 BBL are hallmarks of good, equitable and just governance that can provide the key to solving the long-standing problems in Mindanao.
The Preamble explicitly states a recognition of the Constitution and the accepted principles of human rights, liberty, justice, democracy, and the norms and standards of international law in the Bangsamoro’s quest to achieve its aspirations. A categorical acknowledgement of the Philippine Constitution and international law is always a positive sign on the willingness of the framers to be subservient to the Constitution, the highest law of the land. Same goes with the avowed adherence to the tenets of international law since the Constitution itself recognizes it as part of the law of the land.
Interestingly, the Constitution is also mentioned under Art. XV sec. 4 of the draft BBL which limits the period for expansion of the Bangsamoro unless allowed by the provision of law or by command of the Constitution. Indeed, without an expressed guarantee of any peace pact of law for that matter to recognize the supremacy of the constitution, the exercise becomes tainted with nullity from the very onset.
Highest form of autonomy
One essential principle that can spell the difference whether or not the BBL 2017 will pass constitutional muster is how it construes the term “autonomy” as used therein. The 1987 Constitution has adopted what is known as local autonomy. Based on the principle of local autonomy, the territorial and geographical subdivisions are granted, through a system of decentralization, certain powers, responsibilities, and resources to provide for a more responsive and accountable local government structure.
As proposed, the BBL 2017, much like its predecessor the 2014 BBL, advocates for a political and fiscal autonomy, the aim being to afford the people to exercise their right to self-determination towards the development of political institutions and processes and access to their material resources, while preserving their cultural heritage, values and traditions of the Bangsamoro.
As a matter of general principle, local autonomy is a positive step towards addressing the lingering problems in the South. Real and meaningful autonomy shall allow the Bangsamoro to address the longstanding problems of the Bangsamoro people. However, local autonomy, without need of constitutional amendment, must be confined to the parameters set by the Constitution for local governments as fleshed out in the Local Government Code of 1991. Local autonomy standing is encouraged by the Constitution. However, whether or not the political relations between the Central Government and the Bangsamoro being “asymmetrical” is allowed by the Constitution is a different matter altogether.
The 2017 BBL conceives of two types of autonomy, i.e. political and fiscal autonomy. Political autonomy means less interference by the Central government in governing the region and the Bangsamoro people shall be given more freedom to decide on how they will run their internal affairs. Whereas fiscal autonomy means that the Bangsamoro shall be given the freedom to generate its own resources and to allocate and budget its funds and resources according to their needs. At least insofar as BBL seeks to adapt decentralization or devolution of powers to the local political units within the Bangsamoro is concerned the same is always a welcome development. But again whether the introduction of a special relationship between the Central and the Bangsamoro as asymmetrical and that it is empowered to evolve a ministerial form of government is allowed by the constitution is a different matter altogether.
Certain provisions similar to existing laws appear to conform to the idea of local autonomy as defined under the 1987 Constitution and the Local Government Code. Thus:
Article VI Section 3 gives the President the authority to exercise general supervision over the Bangsamoro Government to ensure that laws are faithfully executed. In other words, the President as the chief executive is not deprived of the power to oversee Bangsamoro. Again, as proposed, the President may be requested by the Chief Minister to call upon the Armed Forces of the Philippines to prevent or suppress lawless violence, invasion, or rebellion, when the public safety so requires, in the Bangsamoro; to suppress the danger to or breach of peace in the Bangsamoro, when the Bangsamoro Police is not able to do so; or to avert any imminent danger to public order and security in the area of the Bangsamoro. This is another clear proof that the Bangsamoro makes no intent to sever the official nexus between the executive and the Bangsamoro government. As such, it is an explicit recognition of the authority of the president as the commander-in-chief of the country.
Big step for progressive politics
I am very much in favor of the political system proposed by the BBL – a parliamentary form of government. Thus, the BBL provides: “The powers of government shall be vested in the Bangsamoro Parliament, which shall exercise those powers and functions expressly granted to it in this Basic Law, and those necessary for or incidental to the proper governance and development of the Bangsamoro. It shall set policies, legislate on matters within its authority, and elect a Chief Minister, who shall exercise executive authority in its behalf.”
Under the BBL, the executive function and authority shall be exercised by the Cabinet, which shall be headed by a Chief Minister who shall be elected by a majority vote of the Parliament from among its members. The Chief Minister shall appoint two (2) Deputy Chief Ministers, as provided under Article VII, and the members of the Cabinet, majority of whom shall also come from the Parliament.
I am happy that the BBL, properly implemented, could lead to party driven politics and governance. Thus the BBL provides that the Bangsamoro Parliament shall be composed of at least eighty (80) members, unless otherwise provided by the Parliament, who are representatives of political parties elected through a system of proportional representation, those elected from single member districts and to reserved seats to represent key sectors in the Bangsamoro. Forty percent (40%) of the Members of Parliament shall be elected from single member parliamentary districts while Fifty percent (50%) of the Members of Parliament shall be representatives of political parties who win seats through a system of proportional representation based on the whole Bangsamoro territory. Finally, sectoral representatives, constituting ten percent (10%) of the Members of Parliament, including two (2) reserved seats each for non-Moro indigenous people and settler communities. Women, youth, traditional leaders, and the Ulama shall also have one reserved seat each.
Excellent provisions on fiscal autonomy
On fiscal autonomy, the Bangsamoro provides for additional sources of funds for the Bangsamoro. In addition to taxes already being collected by the ARMM, the Bangsamoro may also collect a. Taxes; b. Fees and charges; c. Annual block grant coming from Central Government; d. Revenues from the exploration, development, and utilization of natural resources derived from areas/territories, land or water, covered by and within the jurisdiction of the Bangsamoro; e. Share in the government revenues derived from the exploration, development, and utilization of natural resources; f. Share in the Central Government taxes, fees, and charges collected in the Bangsamoro; g. Revenues from Bangsamoro government-owned and/or – controlled corporations(GOCCs), financial institutions and other corporations, and shares from the revenues of national GOCCs and its subsidiaries operating in the Bangsamoro, as may be determined by the intergovernmental fiscal policy board; h. Grants from economic agreements entered into by the Bangsamoro Government and conventions to which the Central Government is a party; i. Grants and donations; and j. Loans and Overseas Development Assistance (ODA).
Similar to the Local Government Code, the Bangsamoro is also given shares in the revenues of government-owned and/or –controlled corporations (GOCCs), financial institutions and other corporations, and shares from the revenues of national GOCCs and its subsidiaries operating in the Bangsamoro.
Presently, the share by the LGUs in the national taxes often referred to as IRA or internal revenue allocation is at forty percent (40%). As proposed, the share in taxes of the Central Government collected in the Bangsamoro, other than tariff and customs duties shall be twenty-five (25%) percent to the Central Government; and seventy-five (75%) percent to the Bangsamoro, including the shares of the local government units. Fiscal autonomy is further strengthened by ensuring the automatic appropriation and release of annual block grant transfers from the Central government. A Special Development Fund shall also be provided by the Central government for rehabilitation and development. Further, the Bangsamoro shall have the authority to contract loans, credits and other forms of indebtedness with government or private banks and lending institutions except those requiring sovereign guaranty.
The Local Government Code has a similar grant to the LGUs by vesting in them the power to create and broaden their own sources of revenue and the right to a just share in national taxes and an equitable share in the proceeds of the utilization and development of the national wealth within their respective areas. This very same power is granted to the Bangsamoro even as in an enhanced form since the shares of the Bangsamoro vis-à-vis the Central government in the taxes are greater than those given to the LGUs under the Local Government Code.
Good provisions on sustainable development and environment
The proposed BBL also vows to protect the environment. Thus Section 2 stipulates that the Bangsamoro shall take into consideration in its planning the ecological balance and the natural resources that are available for its use and for the use of future generations. Also, the Bangsamoro Government shall promote the effective use of economic resources and endeavor to attain economic development that facilitate growth and full employment, human development, and social justice. Furthermore, Section 3 provides that a comprehensive framework for sustainable development through the proper conservation, utilization, and development of natural resources shall be developed to guide the Bangsamoro Government in adopting programs and policies and establishing mechanisms that focus on the environment dimensions of social and economic interventions.
Stronger recognition of IP rights needed
A number of provisions also give the Bangsamoro the authority to regulate or legislate on matters, specifically regarding conflict resolution, without disregarding the diversity characteristic of the Island. Hence, the Bangsamoro Parliament may enact legislation on the regulation of baitalmal, awqaf, and zakat. Also important in the adaption of the Shari’ah justice system insofar as it applies to Muslims without undue disregard to the powers of the Supreme Court. Administration of justice, as proposed, shall be in accordance with the relevant provisions of the Basic Law without disregarding the powers of the Supreme Court and the competence of the Bangsamoro Government over Shari’ah courts and the Shari’ah justice system in the Bangsamoro. The supremacy of Shari’ah and its application shall only be with respect to Muslims. However, customary justice involving Indigenous Peoples living in the Bangsamoro will be respected. Thus, it is stipulated that the laws to promote and support the traditional or tribal justice systems that are appropriate for the indigenous peoples shall be enacted by the Bangsamoro Parliament. This is in deference and respect to the diverse cultural, religious and ethnic background in Mindanao which is more pronounced than in any other region of the Philippines.
Another good provision incorporated in the 2017 BBL is the intent to guarantee the basic rights of all inhabitants of the Bangsamoro as enshrined in the Philippine Constitution, the Basic Law and international human rights conventions. As such, it is guaranteed that no person in the Bangsamoro shall be discriminated against because of age, class, gender, disability, ethnicity, political or religious affiliation. The BBL further guarantees that vested property rights shall be recognized and respected. Any person who has a valid title to land he has acquired legally and fairly will be protected.
In order that protection of rights is all embracing, the BBL recognizes the rights of the Indigenous Peoples, and shall adopt measures for the promotion and protection of their rights, the right to their native titles and/or fusaka inged, indigenous customs and traditions, justice systems and indigenous political structures, the right to an equitable share in revenues from the utilization of resources in their ancestral lands, the right to free and prior informed consent.
Under the Bangsamoro, the Indigenous Peoples are also given the right to political participation in the Bangsamoro Government including reserved seats for the non-Moro indigenous peoples in the Bangsamoro Parliament, the right to basic services, and the right to freedom of choice as to their identity consistent with the United Nations Declaration of the Rights of Indigenous Peoples and the United Nations Declaration on Human Rights and subsisting laws on indigenous peoples in the Bangsamoro.
While there is progress on Indigenous People’s rights, these provisions could be stronger. I am afraid that these fall short of what the Lumad in the Bangsamoro expect for them to support the BBL’s passage.
Justice as basis of Mindanao peace
One feature of the 2017 BBL which offers much promise is the proposed creation of a transitional justice mechanism to address the legitimate grievances of the Bangsamoro people, including the Indigenous Peoples, such as historical injustices, human rights violations, marginalization through unjust dispossession of their territorial and proprietary rights and customary land tenure. The festering problem in Mindanao is principally caused by the perceived injustices committed against the Muslims and a mechanism to address this very same problem is always a welcome development.
All told, many features of the 2017 BBL are, at first blush, consistent with the Philippine Constitution and other laws including the Local Government Code. Many more provisions found therein, if implemented with utmost good faith and competence, will conduce to finding a lasting solution to the peculiar problems facing the people of Mindanao.
Those of us who have worked for decades for peace in Mindanao, indeed the whole country, has a mantra: no justice, no peace. The creation of the Bangsamoro offers us a chance to do justice to the Bangsamoro peoples. It should be designed so it also does justice to the Lumad, Christian setter communities, and all stakeholders in the island.
“Injustice anywhere is a threat to justice everywhere”, as Martin Luther King once said. If we enact the right law and implement it properly, then we can proudly proclaim: we did it, we have justice, we are at peace.
(MindaViews is the opinion section of MindaNews. Antonio “Tony” G.M. La Viña of Cagayan de Oro City is Executive Director of Manila Observatory, former dean and currently professor at Ateneo School of Government, as well as Constitutional Law professor of Xavier University, University of the Philippines College of Law, Polytechnic University of the Philippines College of Law, and De La Salle University College of Law. He was a member of the government peace panel negotiating with the MILF from January to June 2010 following the aborted signing of the already initialed Memorandum of Agreement on Ancestral Domain in 2008).